BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1304|
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                                 THIRD READING


          Bill No:  SB 1304
          Author:   DeSaulnier (D), et al
          Amended:  5/18/10
          Vote:     21

           
           SENATE LABOR & INDUSTRIAL RELATIONS COMM  :  4-2, 4/19/10
          AYES:  DeSaulnier, Ducheny, Leno, Yee
          NOES:  Wyland, Hollingsworth

           SENATE JUDICIARY COMMITTEE  :  3-1, 4/20/10
          AYES:  Corbett, Hancock, Leno
          NOES:  Harman
          NO VOTE RECORDED:  Walters


           SUBJECT  :    Employment Leave:  Organ and Bone Marrow  
          Donations

           SOURCE  :     Project Michelle


           DIGEST  :    This bill (1) requires private employers to  
          permit employees to take paid leaves of absence, similar to  
          those currently available to public employees, for the  
          purposes of organ and bone marrow donations, and (2)  
          prohibits retaliation against employees who take this  
          leave, and would authorize an employee to bring a civil  
          action to enforce the provisions of this bill.  

           Senate Floor Amendments  of 5/18/10 require employers to  
          maintain an employee's health plan coverage during his/her  
          leave and allow for the exhaustion of a certain amount of  
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          sick leave.

           ANALYSIS  :    Existing federal and state laws, the federal  
          Family Medical Leave Act (FMLA) and the California Family  
          Rights Act (CFRA), require all employers with 50 or more  
          employees within a 75 mile radius to grant 12 weeks of  
          unpaid family leave in a 12-month period to any employee  
          who is eligible. This leave can be taken by an employee for  
          the purposes of child birth, care of a newly adopted child  
          or newly placed foster child, and serious health conditions  
          for the employee, the employee's spouse or registered  
          domestic partner, or for the employee's parent. With  
          certain exceptions, the employee taking the leave must be  
          reinstated.

          Existing law requires that employees of the state who have  
          exhausted all available sick leave be allowed to take a  
          leave of absence with pay, not exceeding 30 days for the  
          purpose of organ donation and not exceeding five days for  
          bone marrow donation.

          This bill:

          1.Requires any business entity that employs 15 or more  
            employees to provide up to 30 days of paid leave for an  
            organ donation and up to five days of paid leave for a  
            bone marrow donation.

          2.Provides that, in order to receive a leave of absence, a  
            private employee be required to provide written  
            verification to his or her employer that he or she is an  
            organ or bone marrow donor, and that there is a medical  
            necessity for the donation of the organ or bone marrow. 

          3.Provides that any period of time during which a private  
            employee is required to be absent from his or her  
            position by reason of being an organ or bone marrow donor  
            is not a break in continuous service for the purposes of  
            the employee's right to salary adjustments, sick leave,  
            vacation, annual leave, or seniority.  

          4.Provides that a private employer shall, upon expiration  
            of a paid leave authorized by this bill, restore an  
            employee to the position held by him or her when the  

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            leave began or to an equivalent position.  

          5.Prohibits a private employer from interfering with an  
            employee taking organ or bone marrow donation and from  
            retaliating against an employee for taking such leave or  
            opposing an unlawful employment practice related to organ  
            or bone marrow donation leave.

          6.Authorizes an employee to bring a civil action in the  
            appropriate superior court to enforce the provisions of  
            this bill, including issuance of an injunction and other  
            necessary and appropriate relief.  

          7.Allows employers to require employees to take up to five  
            days of accrued sick or vacation leave for bone marrow  
            donation and up to two weeks of earned and unused sick or  
            vacation leave for organ donation, unless doing so would  
            violate the provisions of any applicable collective  
            bargaining agreement.  Thus, private employees, similar  
            to public employees, could be required to exhaust a  
            certain amount of accrued leave as a condition of an  
            employee's initial receipt of bone marrow or organ  
            donation leave.

          8.Provides that bone marrow and organ donation leave shall  
            not be taken concurrently with any leave pursuant to the  
            federal Family and Medical Leave Act of 1993 or the  
            California Family Rights Act.  These amendments would  
            also specify that bone marrow or organ donation leave may  
            be taken in one or more periods.

          9.Provides that during any period that an employee takes  
            leave for the purposes of bone marrow or organ donation,  
            the employer shall maintain and pay for coverage under a  
            group health plan for the full duration of the leave.  

           Prior Legislation  

           AB 485 (Carter), Chapter 242, Statutes of 2009 .  Requires  
          employers to provide unpaid leave for employees who are  
          volunteer members of the California Wing of the Civil Air  
          Patrol when they respond to an authorized emergency  
          operational mission, and prohibits employer discrimination  
          against any employee who is a member of the Civil Air  

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          Patrol.  

           AB 392 (Lieu), Chapter 361, Statues of 2007  .  Allows the  
          spouses of service members of the armed forces to take up  
          to 10 days of unpaid leave when their spouse is on  
          qualified leave from military deployment.

           AB 1825 (Nakano), Chapter 869, Statutes of 2002  .  Provides  
          for the current leave provisions discussed above for state  
          employees.  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  5/25/10)

          Project Michelle (source)
          American Cancer Society
          American Federation of State, County and Municipal  
          Employees, AFL-CIO
          Asian American Donor Program
          Asian & Pacific Islander American Health Forum
          Asians for Miracle Marrow Matches
          Association of California State Supervisors
          California Employment Lawyers Association
          California Nurses Association/National Nurses Organizing  
          Committee
          California Pan-Ethnic Health Network
          California State Employees Association
          California State Employees Association Retirees, Inc.
          California State University Employees Union
          California Transplant Donor Network - Oakland, Modesto, and  
          Fresno
          Consumer Attorneys of California
          Donate Life California
          Lakeview Family Medicine, PLLC
          Leukemia and Lymphoma Society
          Madison P. Nguyen, Councilmember, Dist. 7 - City of San  
          Jose
          National Kidney Foundation of Northern California
          National Marrow Donor Program
          Service Employees International Union, Local 1000

           OPPOSITION  :    (Verified  5/25/10)

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          Associated General Contractors
          California Chamber of Commerce
          California Construction & Industrial Materials Association
          California Employment Law Council
          California Independent Grocers Association
          National Federation of Independent Business
          Western Electrical Contractors Association

           ARGUMENTS IN SUPPORT  :    Proponents note that, even with  
          seven million potential donors on the U.S. Registry, some  
          patients are unable to find a match due to the rareness of  
          their tissue traits.  When rare conditions or tissue  
          requirements arise, it may be that only a single match or  
          small number of matches can be found.  However, proponents  
          believe that unavailability due to work is a growing  
          problem, and potential donors are unable to take the  
          necessary time off of work for various reasons, including  
          no vacation or sick time, pressure at work, or having the  
          support of their employers.  Proponents state that the lack  
          of available donors in these cases may lead to that patient  
          dying before another donor can register and be identified  
          as a match.  Proponents argue that this outcome not only  
          affects the patient and the patient's family, but the  
          extended family, friends, and community as well. 

           ARGUMENTS IN OPPOSITION  :    Opponents argue that, while  
          this legislation is well-intentioned and organ and bone  
          marrow donations ought to be encouraged in our society,  
          they do not believe a new private sector mandate is the  
          appropriate role of government or the correct policy  
          approach for advancing this laudable goal.  Opponents  
          maintain that creating a new paid leave mandate removes  
          employer flexibility that is necessary to the operation of  
          a business.  Opponents also note that small business  
          bankruptcies are at an all-time high, and argue that a new  
          paid leave mandate will increase the cost of doing business  
          and may unfortunately translate into fewer jobs or other  
          leaves and benefits that employers currently provide.  
           

          PQ:nl  5/25/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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